Introduction

The WP29 guidelines provide a thorough analysis of the notion of
consent as one of the six legal grounds for processing personal
data. While the concept of consent in data protection legislation
is not new, the General Data Protection Regulation
("GDPR") has provided further clarification around the
requirements for valid consent. Generally, consent can only be an
appropriate lawful basis if a data subject is offered control and a
genuine choice with regard to accepting or declining the terms
offered, or may decline them without detriment. When asking for
consent, a controller has the duty to assess whether it will meet
all the requirements to obtain valid consent.

Under the GDPR for consent to be valid it must be:

freely given;

specific;

informed; and

an unambiguous indication of the data
subject's wishes, by a statement or by a clear affirmative
action, signifying agreement to the processing of personal data
relating to him or her.

These elements are considered in further detail below.

Freely given

The element "free" implies real choice and control for
data subjects meaning that if a data subject feels compelled to
consent or will face negative consequences if they do not consent,
then consent will not be valid. If consent is contained in
non-negotiable terms and conditions it is presumed not to have been
freely given. Additionally, consent will not be considered to be
free if the data subject is unable to withdraw their consent. There
are several elements that contribute to whether a choice is
"free":

Imbalance of
power

This commonly occurs in the employment context where it is
unlikely that the data subject is able to deny consent to their
employer processing their personal data without fear of detrimental
effects. The WP29 deems it problematic for employers to process
personal data of current or future employees on the basis of
consent as it is unlikely to be freely given, particularly where,
for example, the consent is bundled in to the terms of an
employment contract (see Conditionality below). For the majority of
such data processing at work, except in exceptional circumstances,
the lawful basis relied upon cannot, and should not, be the consent
of the employees.

Conditionality

Scenarios of "bundling" consent with acceptance of terms
or conditions, or "tying" the provision of a contract or
a service to a request for consent to process personal data that
are not necessary for the performance of that contract or service,
is considered highly undesirable. Bundling is not prohibited as
such but, in the WP29's view, the presumption would only be
rebutted in 'highly exceptional' situations. The WP29 has
clarified that a controller cannot consider a user's bundled
consent to be valid simply because there are competing services
which a user could pick instead.

Granularity

In relation to the requirement for consent to be granular, the
WP29 has clarified that a company cannot ask its customers for
their consent to use their data for marketing and also to share
their details with other companies within their group within the
same consent request. Separate specific consent should be collected
for each different purpose. For example, specific consent should be
should be collected to send the contact details to commercial
partners. Such specific consent will be deemed valid for each
partner, whose identity has been provided to the data subject at
the time of the collection of his or her consent, insofar as it is
sent to them for the same purpose.

Detriment

The controller needs to demonstrate that it is possible to refuse
or withdraw consent without detriment. For example, the controller
needs to prove that withdrawing consent does not lead to any costs
for the data subject and thus there is no clear disadvantage for
those withdrawing consent. Other examples of detriment are
deception, intimidation, coercion or significant negative
consequences if a data subject does not consent. The onus is on the
controller to demonstrate that consent is freely given in all the
circumstances.

Specific

The consent of the data subject must be given in relation to one
or more specific purposes and the data subject should have a choice
in relation to each of them. If a controller processes data based
on consent and wishes to process the data for another purpose, too,
that controller needs to seek additional consent for this other
purpose unless there is another lawful basis which better reflects
the situation. This requirement aims to ensure a degree of user
control and transparency for the data subject and functions as a
safeguard against the gradual widening or blurring of purposes for
which data is processed after a data subject has agreed to the
initial collection of the data.

Informed

Providing information to data subjects prior to obtaining their
consent is essential in order to enable them to make informed
decisions and understand what they are agreeing to. If the
controller does not provide accessible information, user control
becomes illusory and consent will be an invalid basis for
processing. The WP29 considers that at least the following
information is required for obtaining valid consent:

the controller's identity;

the purpose of each of the processing
operations for which consent is sought;

the type of data being collected and
used;

the existence of the right to withdraw
consent;

information about the use of the data
for automated decision-making; and

(vi) the possible risks of data transfers outside the EEA to
countries where there is no adequacy decision and of appropriate
safeguards.

In relation to websites that use cookies, the WP29 states
explicitly that continuing ordinary use of a website cannot be
deemed to be consent, therefore companies looking to deploy
unnecessary cookies will need to find another way of obtaining
consent if they wish to rely on consent as the legal ground for
processing under the GDPR.

Explicit consent

Explicit consent is required in certain situations where serious
data protection risks emerge and where a high level of individual
control over personal data is deemed appropriate. This means that
the data subject must give an express statement of consent. An
obvious way, but not the only way, to make sure consent is explicit
would be to expressly confirm consent in a written statement.

The WP29 has clarified that, in relation to explicit consent for
the processing of special categories of data, this "explicit
consent" can be obtained through a telephone conversation.

Consent vs Other Lawful Grounds

The WP29 warns that companies cannot retrospectively use
legitimate interests as a basis in order to justify processing,
where problems have been encountered with the validity of
consent.

Previous consent

Finally, the WP29 notes that if a controller finds that
previously obtained consent will not meet the standard of the GDPR,
then controllers must take action to comply with these standards;
for example by re-obtaining consent.

Although the EU General Data Protection Regulation entered into force on 25 May 2018, and the obligations under the GDPR have since taken effect, there remain significant uncertainties as regards enforcement.

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